Irving v. State

• Decision Date: 09 September 2019
• Docket Number: A19A1204
• Court: Georgia Court of Appeals
• Parties: IRVING v. The STATE.

351 Ga.App. 779

833 S.E.2d 162

IRVING

v.The STATE.

A19A1204

Court of Appeals of Georgia.

September 9, 2019

Smith & Brown, Shawanda Michelle Brown, for Appellant.

John H. Cranford, Jr., District Attorney, David J. Parrish, Assistant District Attorney, for appellee.

McFadden, Chief Judge.

After a jury trial, Jonathan Quentin Irving was convicted of armed robbery, multiple counts of aggravated assault, making terroristic threats, possession of a firearm during the commission of a felony, and theft by taking of the firearm used in the robbery. He argues on appeal that the trial court erred in several evidentiary rulings, but we find no reversible error. He argues that the trial court erred in not excluding other evidence for purported discovery violations by the state, but we find no such violations. He argues that the trial court erred in denying his motion to remove a juror for cause after the start of trial, but we find no abuse of discretion. He argues that the trial court erred by applying the wrong standard in denying his motion for new trial, but the trial court's order does not reflect such error. Finally, he argues that the trial court erred in failing to merge his convictions for aggravated assault with his convictions for armed robbery for sentencing purposes, and we agree. So we affirm in part, vacate in part, and remand the case for resentencing.

1. Facts.

Irving was tried jointly with a co-defendant, Christopher A. Blackwell, and we set forth many of the facts relevant to this appeal in our separate opinion deciding Blackwell's appeal. Blackwell v. State , 351 Ga. App. 302, 830 S.E.2d 782 (2019). Viewed in the light most favorable to the judgment, see Garza v. State , 347 Ga. App. 335 (1), 819 S.E.2d 497 (2018),

the trial evidence showed that [Irving], along with several other people, planned and executed the robbery of a bank in Carrollton during the afternoon of April 29, 2013. That day, [Irving, Blackwell], Gibran Ezell, and one other man (who was not named at trial) drove in two cars from Atlanta to Carrollton. There, Ezell and the other man got into one car and drove to the bank. Inside the bank, Ezell shot a gun into the ceiling before pointing it at the numerous bank customers and employees who were present. The other man jumped over the teller counter and took approximately $14,000 in cash. During the robbery, the men demanded money, yelled profanities, and threatened to shoot the people inside the bank, frightening them. After leaving the bank, the men drove to a nearby road, abandoned their car, rejoined [Irving] and [Blackwell], and returned to Atlanta.

Blackwell , 351 Ga. App. at 303 (1), 830 S.E.2d 782.

The day after the bank robbery, Irving and another man, Chris Snelson, were arrested after a high-speed chase. Irving and Snelson had been traveling in a Dodge Charger, and when that car crashed in the course of the chase, they fled on foot and were apprehended several hours later. The gun used in the bank robbery was found in the Dodge Charger. The gun had been stolen earlier that month.

An investigation of the bank robbery led law enforcement to arrest Ezell, who ultimately gave a statement implicating Irving and, at trial, described Irving's involvement in the robbery. Other trial evidence corroborated Ezell's testimony. As stated above, the gun used in the robbery was found in a car associated with Irving. When Irving and Ezell were being held in the same jail, Irving wrote Ezell letters alluding to the robbery and threatening Ezell not to admit his involvement to law enforcement. And the former girlfriend of Irving's co-defendant, Blackwell, testified to some of the same details as Ezell regarding events that took place in Atlanta on the morning of the bank robbery. She also connected Blackwell to a Dodge Charger.

2. Evidentiary rulings .

Irving argues that the trial court erred in several of his evidentiary rulings during trial. We review these rulings for abuse of discretion. Williams v. State , 302 Ga. 474, 478 (II), 807 S.E.2d 350 (2017). And in doing so, we follow our Supreme Court's guidance in State v. Almanza , 304 Ga. 553, 556 (2), 820 S.E.2d 1 (2018), to determine the appropriate body of law to apply. As detailed below, we find no reversible error.

(a) Admission of evidence of Irving's arrest after the high-speed chase.

Irving argues that the trial court erred in admitting evidence of his "prior arrest," by which he apparently means evidence of his arrest after the high-speed chase that occurred the day after the bank robbery. He primarily asserts that this evidence was improper character evidence in violation of OCGA § 24-4-404 (b). We disagree.

OCGA § 24-4-404 (b) provides that "[e]vidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith." But these limitations "do not apply to ‘intrinsic’ evidence. Evidence is intrinsic when it is (1) an uncharged offense arising from the same transaction or series of transactions as the charged offense; (2) necessary to complete the story of the crime; or (3) inextricably intertwined with the evidence regarding the charged offense." Clark v. State , 306 Ga. 367, 374 (4), 829 S.E.2d 306 (2019) (citations and punctuation omitted). Stated another way, evidence is intrinsic if "it forms an integral and natural part of the witness's accounts of the circumstances surrounding the offenses for which the defendant was indicted." Thompson v. State , 302 Ga. 533, 543 (III) (B) n. 9, 807 S.E.2d 899 (2017) (citation and punctuation omitted).

The evidence of Irving's arrest following the high-speed chase was intrinsic; it was both necessary to complete the story of the crimes and inextricably intertwined with the evidence regarding the charged offenses, because it established a connection between Irving and the stolen gun used in the bank robbery. See Williams v. State , 342 Ga. App. 564, 567 (1), 804 S.E.2d 668 (2017). So it was not subject to the limitations of OCGA § 24-4-404 (b).

The evidence of Irving's arrest "must also meet the balancing test of OCGA § 24-4-403 [.]" Clark , 306 Ga. at 374 (4), 829 S.E.2d 306. Under that Code section, "[r]elevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." OCGA § 24-4-403. Although the evidence of Irving's arrest "may have incidentally placed [his] character at issue, its probative value was not substantially outweighed by the danger of unfair prejudice under these circumstances. Therefore, the trial court did not abuse [his] discretion in admitting the ... evidence at trial." Fleming v. State , 306 Ga. 240, 245 (3) (a), 830 S.E.2d 129 (2019) (citations and punctuation omitted).

In passing, Irving also questions whether some of the testimony in this case — pertaining to statements made by Snelson and by an anonymous tipster to law enforcement officers — was hearsay and violated the Confrontation Clause. He mentions this issue in a single sentence within his argument supporting his claim that the trial court erred in admitting evidence of his arrest following the high-speed chase. But Irving offers no citation in support of this argument and no explanation of how the argument pertains to his claim of error. It is not apparent from the record that the challenged testimony was evidence of Irving's arrest. But even if it could be construed as such, the trial court made no pre-trial ruling on Irving's hearsay and Confrontation Clause claims and Irving did not object to the testimony on those grounds when it was offered at trial; in fact, his trial counsel elicited the testimony about the comment made by Snelson. Irving has presented no argument or citation of authority to show that admission of the testimony about comments made by Snelson or the tipster was plain error, see OCGA § 24-1-103 (d), and we are not persuaded to reverse his convictions on hearsay or Confrontation Clause grounds.

(b) Admission of evidence of Blackwell's prior armed robbery arrest.

Irving argues that the trial court erred in allowing the state to cross-examine his co-defendant, Blackwell, about Blackwell's prior armed robbery arrest. In deciding Blackwell's appeal, we held that the trial court abused his discretion in this ruling. Blackwell , 351 Ga. App. at 309 (2) (a), 830 S.E.2d 782. But

even where an abuse of discretion is shown, there are no grounds for reversal if the error did not affect a "substantial right," and thus harm, the defendant. In determining whether the error was harmless, we review the record de novo and weigh the evidence as we would expect reasonable jurors to have done so, and we assess whether it is highly probable that the error did not contribute to the verdict.

Venturino v. State , 306 Ga. 391, 393 (2), 830 S.E.2d 110 (2019) (citing OCGA § 24-1-103 (a) ) (citations and punctuation omitted).

In Blackwell , 351 Ga. App. at 309 (2) (b), 830 S.E.2d 782, we determined that Irving's co-defendant, Blackwell, was harmed by the improper admission of character evidence concerning his prior armed robbery arrest. Id. We noted that the evidence against Blackwell was not overwhelming and held that we could not "say that it is highly probable that the admission of the evidence of Blackwell's prior arrest for armed robbery did not contribute to the jury's verdict that he was guilty of, among other crimes, armed robbery." Id.

The same cannot be said for Irving. The evidence of Blackwell's prior arrest was less prejudicial to Irving than to Blackwell because it was less probative of Irving's character than it was of Blackwell's character. And there was significantly more evidence of Irving's guilt than of Blackwell's guilt. The accomplice, Ezell, was familiar with Irving and had known him for several years before the bank robbery, so...